Hanan Isaacs Is Called 'Instrumental' in NJ Legislature's Passage of Uniform Mediation Act

Uniform Mediation Act Appears Bound for Law in New Jersey

October 13, 2004
By Justin Kelly, ADRWorld.com

The Uniform Mediation Act and its broad confidentiality protections for mediation communications sailed through the New Jersey Assembly on Friday, and Gov. James McGreevey is expected to make the act law in his state.

Sean Darcy, spokesperson for the governor, said the bill adopting the Uniform Mediation Act (UMA) "is on the governor's desk for consideration and we expect him to sign it."

S. 679 was adopted without opposition in the Assembly Oct. 7 after gaining unanimous approval by Senate lawmakers earlier this year.

The UMA provides mediation participants with a privilege to refuse to disclose or have others disclose mediation communications, aiming to foster more uniform treatment of communications across the country. The act is now law in Illinois and Nebraska, and bills are currently awaiting action in New York, Vermont, Massachusetts, Ohio and the District of Columbia.

Hanan M. Isaacs, an attorney and ADR neutral in Princeton and who was instrumental in its introduction and passage in New Jersey, said the bill's easy passage through the legislature was due in part to the work put in before its introduction to address any concerns from the legal community, ADR practitioners, labor groups and other interested stakeholders.

According to Isaacs, the main issue that had to be worked out was the UMA's impact on mediations involving the Public Employment Relations Commission and the State Board of Mediation. There were concerns that a "uniform approach would harm existing protocols," he noted.

Another concern was the reporting requirements for neutrals, which runs contrary to the reporting restrictions for mediators contained in the uniform act, Isaacs said. All of the concerns were allayed by exempting from the bill mediations involving both state agencies, he said.

In most other respects the bill closely tracks the language adopted by the National Conference of Commissioners on Uniform State Laws and the American Bar Association.

S. 679 does contain a provision -- offered to the states to adopt on an ad hoc basis -- that would require a mediator to conduct a mediation in an impartial manner unless the parties agree otherwise.

The only other changes were made solely to conform the act to New Jersey practice and terminology, Isaacs said.

However, the Supreme Court will have to conform existing court mediation rules to the UMA, he said.

According to Isaacs, conflicts exist between the court mediation rules on attendance at mediation and confidentiality. In court-connected mediations, a mediator may only report communications if he or she believes they constitute a threat of bodily injury or death, while the UMA contains a slightly broader range of situations where a mediator can report communications.

In addition, in New Jersey a person may only bring a representative or companion to mediation if the other parties consent, while the UMA gives parties an unfettered right to bring representatives to mediations. These issues will have to be "ironed out" with the court, he added.

Passage should have a major impact on mediation in the state but neutrals and advocates must be educated on the provisions of the UMA and how they impact the conduct of mediations, Isaacs said. In particular, parties will have to understand their right under the UMA to structure confidentiality according to the their needs, he noted.